While We’re Lost in the ‘Patent Troll’ Freakout, ‘Reformers’ will Eviscerate Private Property Rights

Seton Motley is the president of Less Government, a DC-based non-profit organization dedicated to reducing the power of government and protecting the First Amendment from governmental assault.

One of America's leading authorities on technology and telecom policy, Motley is a writer, television and radio commentator, political and policy strategist, lecturer, debater, activist, and policy advisor to The Heartland Institute.

The small and dwindling contingent in favor of the terrible, patent-smashing bills being considered in Congress suffer from an obsessive fetish — “patent trolls.” It’s at once a mantra — and a Pavlovian fervor-inducer. Just say “patent troll” in front of any member of this tiny cohort — and watch them freak out.

The American Spectator has been a gracious, serial host to one such troll-ster — Mytheos Holt. As of this writing, SEVEN of his last eightAm Spec pieces — of nine total — are thus myopically focused. In them the word “troll” appears… twenty-six times. Three pieces ago, he cited me by name: “[P]atent troll defenders like Seton Motley….”

[W]hat exactly is a “patent troll?” He or she is someone who owns a patent — which is private property. And is trying to protect their private property from unauthorized use by someone who doesn’t want to pay to use it.

Is someone who owns a house and calls the police to roust squatters a “property troll?” Is someone who reports their car stolen an “automobile troll?”

Why would anyone be opposed to any of this?

The patent troll fetishists don’t like trolls filing lawsuits all over the place charging fake patent infringement. Understandable — I don’t like unnecessary litigiousness anywhere by anyone.

But the main way for legitimate patent holders to legitimately defend their patents from thieves — is to file lawsuits against the thieves. Which, legally, looks — EXACTLY like what the fetishists loathe the trolls doing.

Carving out trolls and their overly litigious ways from real patent holders defending their stuff — is microsurgery. But government isn’t capable of microsurgery — it slams with hammers. The “patent troll” bills currently under consideration are certainly WAY more Thor than Ben Carson.

Also lost on the fetishists is that when the trolls are trolling — they are doing so holding United States Patent and Trademark Office (USPTO)-approved patents. Which means the original sin — is government’s. The root of any troll lawsuit is a USPTO-approved patent — that the government should not have approved. Real, non-damaging reform would and should be focused on the USPTO. These bills do no such thing.

So, I’m not defending “patent trolls” — I am defending the entire patent system. From legislation that will eviscerate it — while doing nothing to address the font of the ensuing problems.

Which brings us to the dirty little secret. Despite all of their bluster about “patent trolls” and lawsuit reform — these fetishists don’t like patents. Or intellectual property of any sort.

Patents are a Constitutionally-cited, fundamental component of any free market economy — protectable private property. In this respect, intellectual property is no different than physical property — and is of ever-growing import as we become more and more digital.

This is quite simply college-faculty-lounge nonsense. No one would argue that legislation mandating weaker security systems at Best Buys — wouldn’t lead to less Best Buys. Of course it would. If Best Buy can’t protect their property — they’ll stop restocking it and close up shop. It’s human nature.

Likewise, legislation that weakens intellectual property rights — will lead to less intellectual property. If an inventor can’t protect his last invention — why would he go to all the expense, time and trouble to create his next? Of course — he wouldn’t. It’s human nature.

Say I expend the time and trouble to climb a wall to stick my face in a hole. And every time I reach the hole at the top, I don’t get a thousand dollars — I get punched through the hole in the face. I’ll very quickly stop doing the work to climb the wall to stick my face in the hole. Human nature.

Yet again, Leftist policy ignores basic human nature. Which is why it always fails. No matter how dressed up and disguised this sort of patent “reform” is — it is just another doomed-to-fail Leftist policy. It will only fundamentally undermine a crucial component of our free market economy.